The Australian Workers' Union

[2015] FWC 8613

[2015] FWC 8613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

The Australian Workers' Union
(RE2015/1652)

VICE PRESIDENT HATCHER SYDNEY, 15 DECEMBER 2015

Application for an Entry Permit - Michael Kerley.

Introduction and background

[1] By an application lodged on 30 October 2015 under s.512 of the Fair Work Act 2009 (Cth) (FW Act) the Australian Workers’ Union (AWU) seeks that an entry permit be issued to Mr Michael Kerley, one of the AWU’s organisers. Mr Kerley was previously issued with an entry permit under the FW Act on 26 March 2012. That permit expired on 26 March 2015. He had also previously been issued with an entry permit under the Workplace Relations Act 1996 on 30 January 2009.

[2] Under s.512 of the FW Act the Commission may issue an entry permit to an official if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the FW Act sets out the matters that the Commission must take into account in deciding whether the official is a fit and proper person and provides as follows:

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

[3] Section 515 of the FW Act sets out the circumstances in which the Commission may impose conditions on an entry permit as follows:

515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).

(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.

(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).

[4] The AWU’s application was accompanied by declarations made by Mr Scott McDine, the National Secretary of the AWU, and Mr Kerley addressing the permit qualification matters in s.513. In addition Mr Kerley made a separate statutory declaration dated 29 October 2015 which disclosed the following matters:

• He is currently employed in the National Office of the AWU. He previously worked in the Queensland Branch until mid-2013 and then in the Western Australia Branch until about August 2014.



• He did not realise his previous entry permit had expired until 28 October 2015. He was notified on that day by National Office staff that his name did not appear on the Commission’s online list of entry permit holders.



• He had not been notified about this by National Office staff beforehand because the National Office had not applied for Mr Kerley’s permit in 2012. This had been done by the Queensland Branch.



• As a result of his oversight he had not returned his entry permit within seven days of its expiry as required by s.517 of the FW Act.



• Mr Kerley recognised that he had personal responsibility for this and sincerely regretted his oversight. He would ensure in future that he would carefully monitor the expiry date of any entry permit granted in the future.



• Because he was not aware that his entry permit had expired, Mr Kerley sent purported entry notices on 12 occasions and obtained entry to employer premises pursuant to these notices on 11 occasions in the period 4 May 2015 to 29 October 2015. He did not act on the 12^th notice because he became aware that his permit had expired.

[5] Mr Kerley gave additional evidence concerning the above matters by way of a witness statement dated 4 December 2015. In that statement Mr Kerley said, among other things, that he was aware of the requirement to return an expired entry permit through his prior right of entry training but that he had failed to keep track of the expiry date of his entry permit. He said he would never have issued any entry notices if he had realised his entry permit had expired. He acknowledged that he had received an email reminder about the expiry of his entry permit from the Queensland Branch on 12 March 2015, but did not read it properly and thought it related to his driver’s licence which was due to expire at around the same time. He also referred to some personal health issues from which he had suffered in 2015, but acknowledged that these should not have prevented him from being alert to the expiry of his entry permit. He said:

“I am fully aware that my actions are serious and unacceptable.

I sincerely regret my actions and the trouble it has caused for my union.

I take my honesty and integrity very seriously and I particularly regret informing employers that I had a valid entry permit when in fact I did not.”

[6] A number of references were appended to Mr Kerley’s statement attesting to his good character and his responsible conduct as a union official. Mr Kerley also noted that his failure to return his expired entry permit had been referred to the Fair Work Ombudsman. It appears that the only action which will be taken by the Fair Work Ombudsman will be to issue a cautionary letter.

[7] The AWU has adduced additional evidence concerning the circumstances which led to the situation described by Mr Kerley. Ms Erica Kurth, the personal assistant to the Secretary of the Queensland Branch, made a statement of evidence dated 2 December 2015 in which she explained that the Queensland Branch had a records management system which automatically generated multiple emails reminding officials when their entry permits and driver’s licences were about to expire. However the email address for Mr Kerley became inactive. This problem was identified within the Branch and a reminder was sent to Mr Kerley on 12 March 2015.

[8] Ms Beryl Lawson, the AWU’s National Projects Officer, also made a statement of evidence dated 4 December 2015. She said that in her role she managed the permits for National Office officials. She said that after commencing in her role in March 2015 she conducted a review of entry permits and discovered that the expired permits of three current officials and seven former officials had not been returned; however the expiry of Mr Kerley’s permit was not detected because the Queensland Branch had his permit records. In around mid-October 2015 she told Mr Kerley that she needed a copy of his entry permit for her records, and this led to the discovery that his permit had expired. She immediately made arrangements for him to be provided with right of entry training and to be assessed in that training, for his entry permit to be returned, and for an application for a new entry permit to be filed. She said that on 4 November 2015 Mr McDine had written to all employers to whom Mr Kerley had sent entry notices after the expiry of his entry permit explaining what had occurred and apologising for the oversight. She also explained the arrangements she had put in place to ensure that in future there would be no repetition of this situation.

Consideration

[9] I will deal with the permit qualification matters specified in s.513(1) in turn. In relation to paragraph (a), I am satisfied that Mr Kerley has received appropriate training about the rights and responsibilities of a permit holder. In relation to paragraphs (b) and (c), I am satisfied that Mr Kerley has never been convicted of an offence against an industrial law or an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty, intentional use of violence against another person or intentional destruction of property. In relation to paragraph (d), I am satisfied that neither Mr Kerley nor any other person has ever been ordered to pay a penalty under an Act or any other industrial law in relation to action taken by the Mr Kerley. In relation to paragraph (e), I am satisfied that on no occasion has an entry permit issued to Mr Kerley under the FW Act or a similar law of the Commonwealth been revoked or suspended or made subject to conditions. In relation to paragraph (f), I find that no court, person or other body under a State or Territory industrial law or OHS law has ever cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes which Mr Kerley had under that law or disqualified Mr Kerley from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.

[10] Mr Kerley’s failure to return his expired permit, and his purported exercise of right of entry powers pursuant to that expired permit, fall to be considered under paragraph (g). The conduct on Mr Kerley’s part which has been disclosed must be characterised as very serious in nature. Mr Kerley has failed to comply with the obligation on him under s.517 of the FW Act to return his expired permit, even though he had previously received training in respect of that obligation as he acknowledged. Even worse, on multiple occasions he misled employers into thinking he had a current entry permit, and entered their premises without obtaining their consent beforehand in circumstances where he had no lawful right to do so.

[11] I am satisfied on the evidence that Mr Kerley’s conduct in this respect was not intentional. However it demonstrates a significant failure of diligence on his part to ensure that he conducted himself in accordance with the relevant requirements of the FW Act. That is a matter which is significantly adverse to the proposition that he is a fit and proper person to hold an entry permit. Whilst it is clear that Mr Kerley is a person of honesty and integrity, the test of fitness and propriety under s.512 is not confined to these criteria. It also involves an assessment as to whether the relevant official has the capacity to ensure compliance with right of entry obligations under Part 3-4 of the FW Act.

[12] Taking all the permit qualification matters into account, I am not satisfied that Mr Kerley is at the current time a fit and proper person to hold an unconditional entry permit. Notwithstanding the evident efforts made by the AWU to ensure that systems are in place to remind officials about the pending expiry of permits, ultimately it remains the responsibility of each official to ensure that expired permits are returned and are not purported to be used. Mr Kerley’s conduct during the course of 2015, which has been described above, causes me significant concern.

[13] However I consider that my concern about his fitness and propriety would be addressed by the following conditions imposed under s.515:

(1) Mr Kerley must take steps to verify that he holds a current entry permit under the FW Act before he issues any entry notice under the FW Act.

(2) Mr Kerley must have his entry permit under the FW Act on his person at any time he exercises entry rights under the FW Act, and must produce that entry permit in accordance with the requirements of ss.489 and 497 (as applicable).

[14] I consider that these conditions are necessary in order to ensure that there is no repetition of the conduct disclosed in this matter.

Conclusion

[15] Taking all the permit qualification matters into account, I am satisfied that Mr Kerley is a fit and proper person to hold an entry permit under the FW Act and that the discretion should be exercised in favour of him being issued with such an entry permit, subject to the permit being issued with the conditions identified. A separate order 1 will be issued to give effect to this decision.

VICE PRESIDENT

Appearances:

S. Crawford for the Australian Workers’ Union.

Hearing details:

2015.

Sydney:

14 December.

 1   PR575027

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